Tuesday, December 20, 2011

Improperly prohibited from exercising my rights, and from conducting my business

I operate a small, independent gunsmithing shop. I am also a firearms instructor. I write a gun blog, and run a gun forum. I have written for many other gun web sites. Firearms are a huge part of my life every day. They're a big part of my work, a big part of my play, just a big part of me.

A couple months back, in preparation for opening up Crispin Arms, I applied for my 01, 06, and 07 FFLs; to become a dealer in and manufacturer of, firearms other than destructive devices, and ammunition for firearms other than destructive devices (I'll be applying to be an SOT for Class III items after the FFL comes through). All of these are licenses and certifications I have held before, but not in several years so I couldn't simply renew them.

That's the basic FFL status required to build, sell, and repair firearms and ammunition; and it's about $400 in fees (non refundable fees by the way).

The Class III fees work out to about $1000 to start (on top of the other fees); and as a low volume dealer, about $500 a year after that(under $500k gross they cut the $1k fee in half); but I won't be paying those for a few more months.

Just after I announced Crispin Arms, I tried to buy a new firearm, and I was denied on my NICS check.

This has happened before, as my father is a convicted felon with the same name as me; and I was able to correct it with a phone call each time; so I wasn't worried. I figured I'd have it sorted in a few days.

Coincidentally, the next day, I got a letter from the ATF (the ATF doesn't handle NICS, the FBI does) saying that I was denied in the standard NICS check they run on FFL applicants; and that I would need to reapply after appealing my denial and correcting any condition which caused it (oh and they were keeping my fees).

This time I made my phone call to the NICS bureau, and they told me I'd need to go through the written process; they couldn't clear up the problem over the phone (or of course, tell me what the problem was).

Thankfully, they've set up a web page to submit the form now, so you can submit the forms directly, and not have to go get your forms certified by a local law enforcement official then mail them off into the bowels of the federal beast (you still need to do that if they need your prints to verify your identity. In this case they didn't).

Ok, so I sent in my appeal form and letter, which I will copy (redacted) here:


I am not a prohibited person, but was improperly denied permission to proceed with a firearms transfer on a NICS check, transaction id number XXXXXXX.

I am a natural born U.S. citizen. I have never been dishonorably discharged from the military; indicted, charged, or convicted, of any offense classified as a felony; or involving substance abuse, or domestic violence, or punishable by more than one year in prison. I have never  been committed, or judged mentally ill, or incompetent. I am not a fugitive from justice. I am not an addict or illegal user of controlled substances.

I am a concealed weapons permit holder in ID, UT, and AZ (licensing me to carry concealed weapons in 38 states). I also undergo full background checks several times annually as part of my employment; most recently eight weeks ago.

When I was denied, I paid a professional service to conduct a full background check; including a full court records search, federally and for all my previous states of residence. I also had my local sheriff  (Bonner county Idaho) conduct a criminal background, and "wants and warrants" check. I found no information to cause me to be denied.

I can think of three possible reasons for having been denied:

1. Prior to 1993 I used my mothers maiden name, Dinsmore. My SSN XXX-XX-XXX was issued under Dinsmore, but has been corrected to Byrne (I included it on the form 4473). Since 1993 I have had serious problems with multiple incidents of identity theft, under both names.

2. My father, Christopher Byrne III, is a convicted felon. I have been denied before because of this, several times over the past 15 years; but each time I have been able to resolve the problem over the phone.

3. My wife and I have been involved in a custody case; during which her ex-husband has committed fraud and perjury; and filed false reports of child neglect, abuse, and kidnapping against us (we were fully cleared). I have never been served with a restraining order, nor to my knowledge has one ever been issued against me; however he (or someone involved with him) may have done so fraudulently.

Thank you,

Christopher J. Byrne IV

A few days later, I received a letter from the FBI; with the reason for my denial, the record identifiers associated with the denial (3 of them); and the process for appealing my denial further, or for correcting the records which caused my denial, at which time I can re-apply.

The reason...

According to the FBI, the Commonwealth of Massachusetts is reporting me to them as a fugitive from justice!

Oh... It gets better...

They are, in theory, reporting me as a fugitive, over three unpaid civil traffic violations, from 1999.

Not even misdemeanors, civil traffic violations.... or rather, failure to appear citations, on bench warrants, issued for not paying the fines on those civil traffic violations.

Now the thing is, I knew about all of that. I have attempted to resolve this several times over the past twelve years, and it's caused me no end of trouble.

The most irritating part of that is, the fines aren't even valid. They are for unpaid violations which occurred while I wasn't even in the state; and then all the fines, fees, hearings, orders, court costs etc.... that piled on because I was never notified of these fines, for these traffic violations I didn't commit.

It made the state of Arizona repeatedly suspend and/or cancel my drivers license for example, because every 6 months Masachusetts would report that I had a Massachusetts license that was suspended.

I ended up having to go to court over this several times, and have spent thousands of dollars fixing it; but I thought that I finally had it fixed. My driving record is now clean and clear; and I haven't had a problem with my Idaho drivers license at all.

Apparently, I was wrong.

You see, Massachusetts has stopped screwing with my drivers license; but now they're screwing with my livelihood directly... but not intentionally because...

According to MASSACHUSETTS, they are NOT reporting me as a fugitive!

I contacted the the state DOJ, the three courts associated with the records, and the Massachusetts state police the day I got the letter from the FBI. According to every law enforcement agency and relevant court in MA, I am not a fugitive.

In fact, according to all their computer systems, searching by name and by SSN; I don't even have any current, outstanding, active indictments, charges, warrants, orders, or fines. That's why I came up clear on the criminal background check I had done in MA after I was denied.

The three courts in question did have paper records of the original issues from 12 years ago; but they were all in the "dead" files. The only thing in the active computer records was a pointer under the case record number where to find the record.

So, obviously, I'm not a fugitive from justice. I am not a criminal, I haven't been charged or convicted of anything; and I've passed a couple dozen criminal background checks (including a top secret security clearance renewal) since 1999.

In fact, after I talked with Massachusetts, I went back to the FBI and the ATF; and both acknowledged that I am not a prohibited person under the law; only that I need to correct an improperly categorized record.

Seriously, why in the hell does the FBI have me listed as a fugitive?

In 2001, after 2 years of not paying the fines associated with these civil infractions (at which time I lived in Ireland by the way), three different courts in Massachusetts, issued three bench warrants. Then after 90 days, those courts cited me for failure to appear on the bench warrants.

Oh... It gets better...

Any lawyers reading this, or anyone who has dealt with warrants, or fugitive retrieval, or is a cop... I'm sure you're all scratching your heads right now, because this shouldn't be happening.

Now technically, there is a legal definition of "fugitive from justice". The federal fugitive database (part of the NCIC) is only supposed to accept a report of you as a fugitive if you meet that definition, which boils down to:
  1. If you are actively fleeing a felony trial, indictment, charge, prosecution, warrant, or arrest (some states handle things a bit differently from others, thus the laundry list).

  2. If you are actively fleeing from criminal trial, indictment, charge, etc... (as above) on certain categories of misdemeanor (mostly domestic violence, mental health, drugs, alcohol, and financial fraud stuff).

  3. If you have escaped or absconded from or failed to report for parole, probation, incarceration, or other judicially ordered custody, detention, or supervision (including non-custodial detention like house arrest)

  4. If you are CURRENTLY in violation of an ACTIVE court order requiring your presence at a certain time or date (summons, subpoena to appear, material witness order etc...).
Moving out of a jurisdiction is not the same as fleeing by the way. Fleeing prosecution or arrest is a crime in and of itself, and requires intent, and deliberate action to avoid.

At this point I feel it's important to note, a failure to appear citation on a 12 year old bench warrant for an unpaid civil fine is not any of those things.

Interstate non-felony warrants are only supposed to be active for 24 months (technically it's a "reasonable time"; but that is conventionally presumed to be within the statute of limitations or maximum term of imprisonment for the offense in question; which for a misdemeanor is presumed to be 24 months), unless there is an outstanding active indictment, or the warrants are reissued; or there is specific cause to believe the offender fled the jurisdiction to avoid prosecution (leaving the jurisdiction lawfully is not fleeing the jurisdiction to avoid prosecution).

I have never been indicted or charged with a crime (other than failure to appear), and these warrants have never been reissued.

Since none of those things apply, every law enforcement agency in the country OUTSIDE of Massachusetts considers me to have a clean and clear criminal record. I've had my local sheriff do a wants and warrants check on me, and nothing shows up, even from Massachusetts. As far as he's concerned I'm clear.

Not only that, but because the bench warrants are on civil fines and failure to appear for a civil hearing, even in Massachusetts I would not be subject to criminal detention on warrant service. Technically the failure to apear is a criminal offense, so I could be arrested (optionally at the law enforcement agencies discretion); but on arrest I would be booked, criminally cited for failure to appear, and released on either a payment of the citation ($500 fine plus $80 in fees) or ROR with a promise to appear (at the discretion of the duty magistrate); and a new summons for another hearing date (I verified this with the MA state police).

Basically, it's only slightly more serious than a glorified speeding ticket; and as I said, even the Massachusetts state police doesn't list me as having any active warrants.

But it gets better...

There's three quirks of Massachusetts law that make this so screwed up:
  1. Massachusetts law makes no distinction between felonies and misdemeanors; and therefore there is no difference between a felony warrant and a misdemeanor warrant.

  2. Bench warrants in Massachusetts never expire (even for misdemeanors and civil infractions); the warrant must be discharged, or a judge has to vacate it. In many states, non-felony bench warrants expire after 2 or 3 years, and need to be reissued to remain active.

  3. In 2010, Massachusetts changed their criminal records privacy regulations and reporting policies, in response to some MA supreme court decisions from 2004-2009. As a result of these changes, they do not include detailed offense or charge information (or even the date of offense, or the date of the warrant) in their reporting to other organizations or agencies, except under certain conditions. They require a court order; a specific, signed and approved record request by an authorized individual or agency; or a certified request in person, or with notarized and LEO agency signed off proof of identity, of the individual whose record it is (or their legal guardian, spouse, child, or next of kin). Without such a request, the record has no detail; only that it exists, the type of record (only 10 types: criminal charge, criminal indictment, criminal conviction, criminal commitment, criminal warrant, custodial order, probation order, parole order, medical/psychiatric order, or order of protection)  and a CJIS record number (not even a case number; though the court, year, and case number, are actually embedded in the CJIS number). 
As the fedgov doesn't consider a non-felony warrant active after 24 months unless the warrant is reissued, this still shouldn't be an issue. It should have been reported in 2001, and by 2003 the warrant would have been classified as inactive, and not popped up in the system (and again, most misdemeanors, are not disabling, and no civil infraction is disabling).

And from 2003-2010 that was the case. I hadn't been denied on a NICS check in years; and as I said, I have always been able to correct the problem over the phone.

But, because Massachusetts doesn't report any distinction between felony and misdemeanor, or any charge or offense date, or even a date of warrant or date of offense; any warrant reported from Massachusetts is counted as if it was an active felony warrant, by the FBI system (because it may be, and they have to treat every warrant as if it were, since they don't know any better).

But it gets better...

A few years ago, Massachusetts basically went broke (or rather, they had to admit they were broker than they could easily cook the books to cover); and they went through a desperate revenue drive. During this drive, they resurrected all the old fines and fees, all the old child support and uncollectable back taxes, all the old summons and old bench warrants etc... they could find; basically to maximize the fines and fees they could collect.

At the same time, the state was centralizing and computerizing their court records, warrant records etc... into something they call the "Massachusetts Criminal Justice Information System", or CJIS (most states have built a CJIS at this point, in order to exchange information with the FBI, NCIC, Homeland Security etc... Many got funding from the fedgov to do so).

The CJIS processed years of back warrants and fines as a result of this funding drive; and they now automatically report all "active" records to the FBI databases every 180 days. Since in MA a bench warrant never expires, they consider it an active warrant.

It was the CJIS that improperly reported me to the FBI as a fugitive, with three active warrants.

Their system makes no distinction between a 12 year old bench warrant for a civil fine, and a felony fugitive warrant; and because their system makes no distinction, when they report it to the FBI, the NICS makes no distinction.

From 2003 to 2010 this wasn't an issue; because the warrants aged out of the federal system. Now that Massachusetts is re-reporting them every six months though; they appear in the FBI automated system to be active, valid, current, felony fugitive warrants (though a 90 second look from a human being will show that is incorrect).

The NICS is supposed to have a records of all ACTIVE warrants, indictments, convictions, orders of commitment and protection, and active pending charges only; along with the charges and offense dates associated with any such records. Part of the NICS is correct for me: it doesn't show any active felony or misdemeanor arrest warrants, charges, or indictments etc... But because Massachusetts reports a failure to appear bench warrant on a civil traffic violation the same way it reports a felony murder warrant; the NICs can't tell that I'm not on the damn 10 most wanted list.

Now, if you do a wants and warrants or criminal record check on me in any state INCLUDING Massachusetts, I come up clean. I've never been charged with, or convicted of, anything more serious than a traffic violation. I've passed multiple criminal background checks for employment purposes, I have multiple CCW permits, I've been buying and selling firearms for years...

I am NOT a prohibited person. During this process, the FBI has acknowledged that I am not a prohibited person. The ATF has acknowledged that I am not a prohibited person. However because one state is reporting me as a fugitive in their systems, they cannot simply correct the record and process my paperwork.

Oh, they could; but unless I go through "the process", they won't.

But it gets better...

At this point, I can either get Massachusetts to correct their record and re-apply, or I can go through the secondary appeal process with the NICS bureau.

I called the Massachusetts CJIS and they said that they can't correct the records without a court order. Their position is, as far as they're concerned the records are correct. I have an undischarged bench warrant, that has not been vacated, and there is no such thing as a felony or misdemeanor warrant in Massachusetts; so they can't exactly report a difference between the two. It's not their fault the FBI interprets them as they do.

Because MA is so screwed up, so desperate for money, and because they recently changed the way they report warrants; I can't be an FFL until I fix their BS.

Said BS is spread across three different courts, in three different cities by the way...

...and here's the crowning glory...

As I mentioned above, I didn't actually commit these violations. I was never cited, given a ticket, or given a summons. I wasn't even in the state when they happened, nor was I in the state when the bench warrants were issued, or when the failure to appear cites were issued.

In fact, I wasn't even in the country when the warrants and cites were issued; and I certainly wasn't served with anything.

If I get in front of a judge, with a lawyer, and they actually decide to listen and not just rubber stamp the states fines and fees (usually they don't listen, no matter what your proof is); then all this should just be dismissed immediately.

Of course, they'd still make me pay all the "costs" and "fees", including a fee just to have a hearing instead of them rubberstamping the fine. That "fee" by the way, is as much as the fine for the violation, PLUS the court costs and fees; and for some things there's even a bond that you have to put up, and that you forfeit if you lose.

Yes, the ACLU is actually suing Massachusetts over this practice by the way; as it is rather clearly a denial of due process. Unfortunately, a denial that many states have emulated, as they try to resolve their own budget issues, and overcrowded courts.

But it gets better...

Because they are bench warrants, with a failure to appear cite; I can't resolve the issue from home, unless a judge specifically decides I can have a lawyer act for me in absentia. Which means I need to pay a lawyer to go to court for me, ask the judge to allow him to appear for me in absentia, and hope the judge agrees (they usually don't).

I've been through this before by the way, on the bogus suspended license issue. It cost me $2500 in fines and fees, and another $3500 in legal fees, but I was finally able to get a lawyer to act for me.

If not, I'll have to go to Massachusetts, be arrested in three different jurisdictions, be processed in three different jurisdictions, pay three citation fines and fees ($1740 worth), get three new summons for a date some time in the future (usually 30-90 days; but almost certainly on different days) and go home; then 30-90 days later come back for the hearings, just so I can have the judge vacate the warrants.

Oh and of course, I have to pay the court costs, fees, fines etc to have the warrants vacated, no matter what. Then I have to go through the second hearing on the fines and fees; which,  if I am lucky, they will have right then; but most likely they won't, because the attorney representing the agency which issued the fine wont be there, with their records, and another hearing will be set for another 30-90 days after that.

In the best possible case, I can be arrested and processed in one jurisdiction the day before they are holding traffic hearings, then come back the next day and ask to have my hearing that day at the convenience of the court; wait all day to see if they hear me; get heard, and have the warrants vacated, then ask to be heard on the fines that day, or the next morning, or the next day they are holding traffic hearings.

Then I would repeat that two more times over the course of two or three weeks (since each one would take at least two days, maybe three, even if the judge did decide to expedite the hearings; and the courts may have conflicting schedules), hoping the judges all agree to hear me on a walk in, and then agree to hear the fine the same day or the next day.

And, as I said above; even if I can get them to do that, they're still going to charge me costs and fees at least equal to what the fines were anyway.

Frankly, I just don't have that money. Not even close to it.

Ok... so as I said above, I can appeal for a supplementary hearing from the NICS bureau, get them to purge that record from the NICS database "permanently",  add a note to my record, and give me a unique ID number to keep me from being denied again because of it.

If I go that route, because there is a "valid" record being reported by a state, and the state won't correct it; I have to pay for a federal investigation, then pay for a federal hearing, get that hearing, argue my case that the MA records should be purged as non-disabling (as they clearly are not), and have the presiding official decide that is what they should do.

Oh and the time to do that is anywhere from 9 months to 2 years by the way; and thousands of dollars

Yeah... I don't have that money either; or that time.

Oh and if I go that way, and MA changes how they report the records at any time, I'll have to go through the whole thing all over again...

So, to Massachusetts it is.

For now, a lawyer friend of the family (my attorney in Massachusetts recently retired) is looking into trying to get all this sorted for me remotely, and for as little money as possible. Otherwise, it could be six months or more before I get my FFL.

Now, let's be clear; both the FBI and the ATF acknowledge that I am not a prohibited person; that this is just a paperwork problem, and that I am legal to own and possess firearms. I'm legal to obtain a firearm through a private intrastate transfer.

I'm even legal to repair and customize firearms, under someone else's FFL, because you don't have to actually permanently transfer a firearm to an FFL or gunsmith who is repairing or servicing it (including modifications, but not "remanufacturing" or manufacturing a new firearm). I have a partnership arrangement with a local FFL until my own FFL comes through; and I am never transferred a firearm to perform gunsmithing work on it. The FFL receives the firearm for repair or service, and writes it into their bound book as such. I take the firearm offsite for repair or service without transfer, which is allowed, under the auspices of the FFL holder. When I'm done, the FFL writes the firearm back out to the original owner, without a permanent transfer occurring (I simply cannot manufacture a new firearm, until my FFL comes through. I can assemble an AR from already manufactured components, but I can't make a new custom 1911).

And yes, I have confirmed all that with the local ATF inspector; it was necessary for my deal with the local FFL.

...But they won't fix the NICS without going through the official process; and because the NICS is "the system" for an FFL to obtain clearance to transfer a firearm, even though I am not a prohibited person, no FFL can transfer a firearm to me right now, and I can't be granted my FFL.

You might have noticed, the whole thing is pretty much arbitrary and capricious, from start to finish.

I have been improperly denied the exercise of my constitutionally guaranteed rights. Rights which the supreme court acknowledges pre-exist our nation and our constitution.

I have the right to obtain a firearm for any lawful purpose. That right is independent of our constitution, and our government; and is supposed to be legally protected by both. However, because of a paperwork issue, which everyone acknowledges is just that, a paperwork issue, not an actual condition of disability or prohibition; I am prevented from acquiring a firearm from a federally licensed firearms dealer.

This, is why background checks are always going to be a problematic issue with gun rights. The idea of a background check to prevent prohibited persons from having firearms transferred to them is OK; but what happens when the background check is wrong?

Is it ever acceptable to deny someone the legitimate and lawful exercise of their rights, simply because others may be prohibited? Or because of a computer error? Or because of a dispute between the way one agency keeps records, and another agency interprets them?

Those who strongly defend free speech will say "Of course not", when they're talking about speech...

Funny enough though... most of those same folks change their tune when we're talking about guns...